On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 83-0143) District Judge: Louis Rosenberg

Author: Sloviter

Before: GIBBONS, SLOVITER and VAN DUSEN, Circuit Judges

MEMORANDUM OPINION OF THE COURT

SLOVITER, Circuit Judge.

Edward J. Fisher, an inmate at the State Correctional Institute at Pittsburgh (SCIP), appeals from the grant of summary judgment for the defendant prison officials. Fisher filed a judgment for the defendant prison officials. Fisher filed a civil rights action under 28 U.S.C. § 1983 alleging that he complained to the medical officer for the prison that his hand is paralyzed, withering away, and deteriorating; that he asked to be seen by an outside hand surgeon not affiliated with the institution; that defendant Dr. Michael V. Gilberti, the prison medical officer, told him that an operation was feasible but that it would cost too much money and take too long; and that Fisher knows from other competent surgeons that such an operation can be done. He also alleged that defendants George Petsock, Superintendent of SCIP, and Ronald J. Marks, Commissioner of the Bureau of Corrections, the officials responsible for his health and well being, have hindered his health and general well being by denying Fisher's administrative complaint.

The district court denied defendants' motion to dismiss, directed the parties to file narrative written statements, and referred the matter to the magistrate for an evidentiary hearing, proposed findings of fact and conclusions of law, and recommendations.

Defendants then filed a motion for summary judgment. In support, they filed the affidavit of Dr. Gilberti in which he stated that he is the chief medical doctor at SCIP; that he examined Fisher on a number of occasions, and noted that Fisher has a deformity of his left forearm due to numerous gunshot wounds; that the atrophy of his muscles in that hand has left him with flexion difficulty of the left hand; that in his opinion and based upon his best medical judgment an operation on Fisher's left hand would not help him regain the use of his left hand; that the atrophy of the muscles is too extensive due to the age of the wound; and that he could not guarantee that an operation would be of any benefit to plaintiff. Therefore, he did not and would not recommend that plaintiff undergo a muscle transplant operation and does not recall plaintiff asking him about such an operation. He averred that he always treated plaintiff in his best medical fashion and never denied him any treatment he felt was in his best medical interest.

Petsock filed an affidavit stating that it is his duty as superintendent under Bureau of Corrections Administrative Directive 820 to provide adequate medical care for the inmates housed at SCIP; that there is no policy preventing any operation due to its costliness; that he has no authority to overrule or dictate any medical treatment being given by an institutional physician; and that the medical diagnosis and treatment of an inmate is left to the sound medical judgment of the doctor who is treating the prisoner. A third affidavit was filed by Glen R. Jeffes, the Acting Commissioner of the Pennsylvania Bureau of Corrections who was appointed to this position upon the retirement of defendant Ronald J. Marks, stating that he is responsible for reviewing and promulgating the administrative directives and policies used by Bureau of Corrections in all of its penal institutions including the State Correctional Institution at Pittsburgh; that Directive 820 states that any inmate who requires specialized treatment not available at the prison where he is residing shall be transferred to another institution where the facilities are available or to an outside hospital; and that the sole criteria that determines what medical treatment an inmate is given is the sound medical judgment of the attending physician.

Finally the Hospital Administrator filed an affidavit that attached Fisher's medical record file which discloses that Fisher was taken to specialists outside the institution for evaluation of an ear problem. There is no record of Fisher being taken to an expert outside the institution for evaluation of his left arm and hand, or for an opinion on the feasibility of surgery.

The magistrate treated plaintiff's brief in opposition to the motion for summary judgment as an affidavit because it included a declaration under penalty of perjury. She summarized it as including his official inmate complaint in which he stated that he needed an operation on his left arm in order to make his hand work, that he had been told by two doctors that the operation was feasible but cost too much money and took too long; that he had complained about his pain in the arm; and that he wanted to have his arm "fixed." Fisher also attached his request to defendant Petsock regarding the lack of an answer to his complaint and Petsock's response, inter alia, that "if the surgeon states you need an operation you shall get one, in the same vein if it is not an emergency you are put on a list." Fisher also attached documents showing he complained to the Deputy Commissioner and asked to see an orthopedic doctor who was not associated with the institution.

The magistrate recommended that the court grant the motion for summary judgment. The magistrate stated that there is a genuine issue as to fact as to whether Gilberti told plaintiff that the muscle transplant he sought was feasible but was too costly and would take too long, but decided that was not a material fact because "[d]efendants' affidavits, together with Administrative Directive 820, would appear to establish that the cost and length of time of treatment are not factors in the determination as to whether a particular prisoner shall receive medical treatment." The magistrate stated that under Directive 820 "the only question is whether a resident requires specialized treatment not available at the facility where he or she is residing." (emphasis in original). She stated that Fisher has not refuted Gilberti's affidavit establishing that to the best of his medical opinion, the surgery plaintiff seeks would not help him regain the use of his left hand.

The district court agreed with the magistrate, further commenting "that the doctor had noting to lose by performing his duties according to standard medical practice and protocol, and that as a doctor he would be responsible for his own actions in undertaking a risky and dangerous operation in which he knew the chances of success where [were] nil". The district court stated that plaintiff failed to attach an affidavit by an independent surgeon or doctor supporting his contention that the surgery was safe and would be beneficial rather than harmful and destructive. Based on this reasoning the district court gave summary judgment.

The factual issue presented is whether defendants have acted or are acting with deliberate indifference to the plaintiff's serious medical needs. Estelle v. Gamble, 429 U.S. 97 (1976). The relevant issue is not only, as the magistrate and district court have assumed, whether Dr. Gilberti declined to perform or schedule surgery on plaintiff's arm because he believed in good faith that such surgery would be ineffective, but whether Dr. Gilberti and/or the officials should refer or should have referred Fisher to an outside specialist. It is patent from plaintiff's complaint and from the various papers that he filed that he is complaining about the failure of Dr. Gilberti and the institution to refer his medical condition to a medical expert. His complaint specifically states that Dr. Gilberti "is not qualified to render a decision in a field of surgery he is not familiar with." In plaintiff's objections to the magistrate's report he stated "I object to being seen by a doctor who is not a hand specialist, and who is preventing me from being seen by one." The magistrate recognized the nature of plaintiff's complaint in her initial report and recommendation recommending the denial of the motion to dismiss, where she stated that plaintiff brings this action "seeking to be seen by a hand surgeon who is not affiliated with the institution . . . ."

Neither the magistrate nor the district court focused on this aspect of plaintiff's case. It is simply no answer to state, as did the district court, that plaintiff should have attached an affidavit by an independent surgeon, since that is precisely the consultation plaintiff seeks. Accepting the unrebutted averments of Dr. Gilberti's affidavit that he acted reasonably and with good intentions in concluding an operation would not be effective, they still fail to meet the issue of reference to a specialist raised by plaintiff to Dr. Gilberti's competency to make the judgment about surgery. Dr. Gilberti's affidavit does not even intimate that he is a specialist in this particular field.

All the parties concede that Fisher's problem with his left arm and hand is a serious medical one and defendants do not contest that the condition will continue to deteriorate. Directive 820 provides for reference to an outside institution, and Fisher was so referred for a different medical problem. The affidavits of Petsock and Jeffes say nothing about why Fisher's request to be seen by a hand specialist was not granted, nor do they suggest that reference to an outside specialist would be unavailing.

Denial of a prisoner's request to be referred to a specialist for a serious medical problem when there is no comparable medical consultation available at the institution may constitute deliberate indifference. We do not suggest that every prisoner with a medical problem has a constitutional right to be seen by an outside medical specialist. Most prisoner ailments can be adequately treated within the institution. However, in some cases, as defendants themselves have recognized, there is a valid need for consultation with a medical specialist.

In light of the facts that neither the magistrate nor the district court considered the issue of the failure to refer plaintiff to an outside specialist as he requested, plaintiff's request for such a reference does not appear on the face of the record to be frivolous, Dr. Gilberti's short affidavit does not state either that adequate medical treatment in this regard was available for Fisher in the institution nor does it state why he did not recommend that Fisher be seen by an outside specialist, and none of the other affidavits are addressed to that issue, we conclude that on this record summary judgment should not have been entered. Accordingly, the judgment will be vacated and the case will be remanded for further proceedings.

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